Vipinlal v. Dileep K.K. and ICICI Lombard General Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941** ## **MACA.No.2389 OF 2018** **AGAINST THE AWARD IN OPMV NO.97/2015 DATED 22.06.2017 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM** ## **APPELLANT/PETITIONER:** **VIPINLAL, S/O PADMANABHAN, AGED 24, VADAKKEVEETTIL HOUSE, KOTHALI BHAGOM, PEELIKODE P.O., PEELIKODE VILLAGE, KAZARGODE.** **BY ADV. MATHEWS K.PHILIP** ## **RESPONDENTS/RESPONDENTS:** **1 DILEEP K.K., S/O KUMARAN, KIZHAKKETHUNDIYIL HOUSE, PALLIMUTTAM BHAGOM, EROOR P.O., NADAMA VILLAGE, KANAYANNUR TALUK, ERNAKULAM - 682 306. 2 THE DIVISIONAL MANAGER, M/S ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED KOCHI-31. BY ADV. AJITH KUMAR R.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No.2389 OF 2018** **2** ## **JUDGMENT** The appellant is the claimant in O.P(MV)No.97 of 2015 on the file of the Motor Accidents Claims Tribunal, Ernakulam, a claim petition filed under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 09.08.2014, while he was riding a motorcycle bearing registration No.KL-7/BB-9782. At the place of accident, the motorcycle was hit by an autorickshaw bearing registration No.KL-39/F-5919, owned and ridden by the 1[st] respondent and insured with the 2[nd] respondent. In the accident, the appellant/claimant sustained injuries. Alleging that the accident occurred due to the rash and negligent riding of motorcycle by the 1[st] respondent, claim petition was filed before the Tribunal claiming a total compensation of Rs.1,60,000/-, under various heads. 2. Before the Tribunal, the 1[st] respondent ownercum-rider of the motorcycle filed written statement admitting the accident; however, denying negligence alleged against him. The 1[st] respondent alleged negligence on the appellant/claimant, who was riding the motorcycle. It was **MACA.No.2389 OF 2018** **3** pointed out that the vehicle involved in the accident was having valid insurance with the 2[nd] respondent insurer. 3. The 2[nd] respondent insurer filed written statement admitting insurance coverage of the autorickshaw involved in the accident; however, denying the negligence alleged against the 1[st] respondent owner-cum-rider. The age, occupation, monthly income, etc. stated in the claim petition were denied and it was contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the appellant/claimant. Both sides have not chosen to adduce any oral evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the accident occurred due to the rash and negligent driving of the autorickshaw by the 1[st] respondent. Since insurance coverage of the said vehicle was not in dispute, the insurer was held liable to indemnify the insured. Under various heads, the Tribunal awarded a total compensation of Rs.1,12,500/- together with interest at the rate of 9% per annum from the date of petition till date of realisation, with proportionate cost and the insurer was directed to satisfy the **MACA.No.2389 OF 2018** **4** award. The 2[nd] respondent insurer was directed to satisfy the award within 30 days from the date of award. 6. Dissatisfied with the quantum of compensation awarded by the Tribunal, the appellant/claimant is before this Court in this appeal. 7. Heard the learned counsel for the appellant/ claimant and also the learned Standing Counsel for the 2[nd] respondent insurer. 8. The issue that arises for consideration in this appeal is as to whether the appellant is entitled for enhancement of the compensation awarded by the Tribunal under various heads. 9. In **State of Haryana v. Jasbir Kaur [(2003) 7 SCC 484]** the Apex Court held that the Tribunal under Section 168 of the Motor Vehicles Act, 1988 is required to make an award determining the amount of compensation which is to be in the real sense 'damages' which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly **MACA.No.2389 OF 2018** **5** indicate that the compensation must be 'just' and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. 10. In **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** a Constitution Bench of the Apex Court held that, Section 168 of the Motor Vehicles Act, 1988 deals with the concept of 'just compensation' and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of 'just compensation' has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of equitability. 11. In the instant case, the compensation awarded by the Tribunal under various heads reads thus; |Heads|Amount<br>claimed|Amount<br>awarded (in<br>Rs.)| |---|---|---| |Loss of earnings|30,000/-|22,500/-| |Transport to hospital and<br>back to home|20,000/-|3,000/-| **MACA.No.2389 OF 2018** **6** |Extra nourishment|3,000/-|3,000/-| |---|---|---| |Medical expenses|1,00,000/-|68,907/-| |Damage to clothes and<br>articles|1,000/-|2,000/-| |Attendant Expenses|4,000/-|2,000/-| |Treatment Expenses|25,000/-|42,000/-| |Compensation for pain and<br>sufferings|30,000/-|30,000/-| |Compensation for the<br>permanent disability if any|40,000/-|0| |Compensation for loss of<br>amenities and comforts|20,000/-|5,000/-| |Future treatment expenses|5,000/-|3,000/-| |Total|1,60,000/-|1,12,500/-| |Claim Limited to Rs.1,60,000/-||| 12. The accident occurred on 09.08.2014. At the time of accident, the appellant was aged 23 years. The appellant claimed a monthly income of Rs.10,000/- as a Supervisor. No materials were produced before the Tribunal to prove the monthly income of the appellant. The appellant has also not chosen to mount the box. In the absence of any reliable materials, the Tribunal fixed the monthly income notionally as Rs.7,500/-, for the purpose of assessing compensation under various heads. 13. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, **MACA.No.2389 OF 2018 7** notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 14. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an **MACA.No.2389 OF 2018** **8** unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/- per month. 15. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2014, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this Court deem it appropriate to re-fix the monthly income of the appellant notionally as Rs.9,500/-, for the purpose of assessing compensation under various heads. 16. The document marked as Ext.A2 is the wound certificate; Ext.A7 is the treatment certificate from V.K.M. Hospital, Tripunithura; and Ext.A8 is the discharge summary. As evident from medical records, in the accident, the appellant sustained lacerated wound right foot with tenderness and fracture 2[nd] , 3[rd] and 4[th] meta tarsal of left **MACA.No.2389 OF 2018** **9** foot. The appellant had undergone inpatient treatment for a period of eight days from 09.08.2014 to 16.08.2014. Ext.A7 treatment certificate would show that he had undergone wound reduction and K wire fixation. Ext.A9 medical bills are for a sum of Rs.42,000/-. 17. Towards loss of earning, the Tribunal awarded a sum of Rs.22,500/-, at the rate of Rs.7,500/- for a period of 3 months. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the period of 3 months fixed by the Tribunal for granting loss of earning is re-fixed as 4 months. Since the monthly income of the appellant is re-fixed notionally as Rs.9,500/-, the compensation under the head loss of earning is re-fixed as Rs.38,000/- (9,500 x 4), resulting an additional compensation of **Rs.15,500/-** (38,000- 22,500). 18. On account of the injuries sustained in the accident, the appellant had undergone inpatient treatment for 8 days. Towards transportation to hospital, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the **MACA.No.2389 OF 2018 10** compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 19. Towards extra nourishment, the Tribunal awarded a sum of Rs.3,000/-. Towards attendant expenses, the Tribunal awarded a sum of Rs.2,000/-. The accident is of the year 2014 and the appellant had undergone inpatient treatment for 8 days. Considering the nature of injuries sustained and the treatment the appellant had undergone, as borne out from medical records, the compensation awarded by the Tribunal under these heads represents just and reasonable compensation, which requires no enhancement in this appeal. 20. Towards damage to clothing and articles, the Tribunal awarded a sum of Rs.2,000/-. Considering the fact that the accident is of the year 2014, the compensation awarded by the Tribunal under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 21. Towards treatment expenses, the Tribunal awarded a sum of Rs.42,000/-, covered by Ext.A9 medical bills. In the absence of any further materials, the **MACA.No.2389 OF 2018 11** compensation awarded by the Tribunal under this head represents just and reasonable, which requires no enhancement in this appeal. 22. Towards compensation for the permanent disability, the appellant claimed a sum of Rs.40,000/-. In the absence of any disability certificate showing permanent disability, on account of the injuries sustained in the accident, the Tribunal cannot be found fault with in not awarding any compensation under this head. 23. Towards loss of amenities, the Tribunal awarded a sum of Rs.5,000/-. Considering the nature of injuries sustained, the compensation awarded by the Tribunal under this head represents just and reasonable compensation, which requires no enhancement in this appeal. 24. Towards future treatment expenses, the Tribunal awarded a sum of Rs.3,000/-. Considering the nature of injuries, the compensation under this head cannot be said to be on the lower side, which requires no enhancement in this appeal. 25. In the result, the appellant will be entitled for payment of an additional compensation of **Rs.15,500/-** (Rupees Fifteen thousand and five hundred only) in this **MACA.No.2389 OF 2018** **12** appeal, which will carry interest at the rate of **8%** per annum from the date of petition till realisation excluding the period of delay of 239 days in filing this appeal, which was condoned by order dated 15.11.2019, subject to the condition that in case enhanced compensation is awarded, the appellant will not be entitled for interest for the said amount for the period of delay. The 2[nd] respondent/insurer shall satisfy the additional compensation granted in this appeal, together with interest, within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the appellant/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of the amount to the appellant/claimant shall be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D1-62475/2016 dated 07.11.2019. This appeal is disposed of as above. No order as to costs. Sd/- **ANIL K. NARENDRAN, JUDGE** Skk//131219